"All you have to do is look at the faculty list for the law or communications schools at Cleveland State University to see impact of clearly racist hiring practices . . . . Fully 90% of the communications department faculty is white, and the department chair has always been held by a WASP. Almost all the law school faculty is white. . . . There isn't a Mexican-American on either faculty, despite the large, multi-generational Mexican-American community in the Cleveland area."

and, second,

"All you have to do is look at the faculty list for the law or communications schools at Cleveland State University to see impact of clearly racist hiring practices . . . . Fully one third of the communications department faculty is Jewish, and the department chair has always been held by an American Jew. Almost half of the law school faculty is Jewish. . . . There isn't an Arab-American on either faculty, despite the large, multi-generational Arab-American community in the Cleveland area."

The first quote is hypothetical; it's a version of the second quote with group identities and numbers changed to take account of the different sizes of different groups. (Given that 2% of the U.S. population is Jewish, and 70% is white, providing a comparably stark disproportion with respect to whites required me to change "one third" and "one half" to "90%" and "almost all," and I used "Mexican-American" instead of black or Hispanic since I wanted a group that was comparable in size to Arab-Americans in Cleveland, which they seem to be, at least as of 1990.)

The second quote is an actual quote from Prof. Edward Abboud, who had been an adjunct instructor at Columbus State Community College, and who says he's been denied further employment because of his ethnicity (and possibly because of his anti-Israel views). The e-mail containing that quote is excerpted here (and thanks to CampusJ for the pointer). I also have a forwarded copy of that e-mail, which I've checked myself. (The e-mail's return address is at the seeming vanity press and public relations company that publishes Prof. Abboud's book, so I assume the quotes are authentic.)

Now I don't think that either quote requires the speaker to be actually anti-Semitic or anti-white. Whether or not Prof. Abboud is anti-Semitic, his arguments could certainly be made by someone who isn't.

But I think both quotes make the same mistake of inferring that racial or ethnic disproportion means "racist hiring practices." If you think there are nonracist explanations for why Jews (or Asians or other groups) are overrepresented in certain fields, then it seems likely that there are similar explanations for why other groups are underrepresented in certain fields. (Note, incidentally, that I'm not sure that Arab-Americans are indeed underrepresented relative to the hiring pool at Cleveland State, but that's irrelevant for the purposes of my argument.)

Moreover, if you really do oppose ethnic or racial disproportion for its own sake -- if you want a "university that looks like America" (or like Cleveland), then you do have to ask yourself: Does a law school faculty that's nearly half Jewish (like ours is here at UCLA) really look like America? In 2004, 34% of freshmen admitted to the UC were Asian, and my recollection that in the past (and perhaps even now) UC Irvine was over 50% Asian; does that really look like America or like California? If the answers to these questions are "no," then either you need to impose quotas on Jews or on Asians, or you need to conclude that it's quite proper for institutions to not mirror the racial proportions of the population.

Huh? On the one hand we get lengthy rants by co-conspirators about academic bias based on counting heads (Republicans vs. Democrats), but Volokh says that methodology is inherently flawed. As always, to use a biblical reference, it depends on whose ox is being gored.

Don't you think it might depend on (1) what other evidence of discrimination the blogger points to besides the disparity, and (2) who's goring the ox?

I much admire the work of my cobloggers, but this doesn't mean that I always agree with all the details of their arguments. I think it's very important for us to know that the academy is politically lopsided -- for instance, it reminds us that the fact that something is conventional wisdom among academics doesn't mean that there's really a bipartisan consensus on the subject. But, no, I don't think that the political disparity on law school faculties reveals "clearly [politically biased] hiring practices." (I'm not sure if past posts by others have so stated, but if they did, then I'd disagree.) I've at times seen evidence of such biased hiring practices in particular situations, but I don't think that the disparity alone is dispositive or even strongly indicative on this question.

Now, could some people perhaps comment on the substance of this post, rather that on the fact that, shockingly, the Conspirators might not always speak in lockstep?

Redman, the case escapes me (but if I recall it had to do with D.C. police hiring practices), but SCOTUS has declined to find that disparate impact is sufficient to show discrimination though it is (obviously) a relevant data point. If that's all you've got, though, the case is a loser.

I think you are misinterpreting the quote. I don't think he implies that the numerical disparity proves there are racist hiring practices; I think he implies that the numerical disparity supports an inference that there are racist hiring practices. Presumably, as someone with personal experience with the hiring process, he believes (rightly or wrongly) that there are racist hiring practices based on his own experience, and not merely based on head counting.

If you want to parse his words, he said the faculty list shows the "impact" of racist hiring practices, not that it proves the existence of racist hiring practices.

Another important difference: A Jew/Non-Jew head-count focusses on who you are. A Republican/Democrat head-count focusses on the public policies you espouse. The latter is self-evidently relevant to a balanced education. The former, not so much.

Courts do indeed infer procedural error from outcomes of processes that could well be fair. The most recent example is 2005 WL 2064001, a 6th Cir. opinion dated August 29 (U. S. v. Stephens). In this case, it is biased peremptories. SCOTUS invited it in Castaneda (1977), and has never understood the fallacy.

We consider first the use of two peremptory strikes against African-American venire members. With those challenges the government eliminated 66% of the African-American prospective jurors. Moreover, with those challenges, the prosecutor used 33% of its strikes against African-Americans, who comprised less than 10% of the venire. We are cognizant that with the small numbers involved, a pattern is difficult to detect, and we need not determine whether those strikes alone would demonstrate a prima facie case. Instead, we follow the Supreme Court's command to consider "all relevant circumstances" in determining whether an inference of discrimination is met.

Stephens, 2005 WL 2064001 at *9.

" In this case, all of the six peremptory challenges were used against members of minority racial groups." Id.

The trial court is who brought up the issue in that case, incidentally. Moreover, all that the court did in that case was remand for a determination of whether there was an EP violation because the prima facie case standard of Batson had been met. A prima facie showing is different from a finding if discrimination.

I think the contrast to some of the other Conspirators' approach is the most (if not only) interesting aspect to this post. Frankly, I find the point a little trivial.

First, ditto to many of the things said above. I think Steve has a reasonable take, for instance.

Second: Why would you assume that "looks like America" must connote near statistical identicality? (I'm reasonably sure that's not a real word.) It seems far more sensible to take it to be a heuristic for diversity, pluralism and multiculturalism---ideas that, whether you find them intellectually respectable or not, don't put a lot of weight on pure mathematics.

Second, it's a peculiar kind of daftness that can't understand the difference between not wanting to go to a place because "everyone's so white there" and not going because "everyone's so black there." Issues of race and diversity and discrimination and all of it aren't susceptible to the unadulterated logic of symmetry; every school child born in this country knows that by the time they learn the meaning of the word "segregation," whether or not they go so far as to study Black and Wechsler's dueling over Brown v. Board.

And that's not just true for the fact that we all know what the context and subtext of race is; it makes good psychological sense. If the study of cognitive biases has one central insight, it's probably that the judgments you're most comfortable with are the ones you're most likely to get wrong. If a bunch of privileged white people keep passing down the accoutrements of comfortable accomplishment to people who look like them, we might well be suspicious whether the endowed chairs weren't being divvied up at least partly based on criteria that oughtn't have a place in the decision. But if the white people who (largely) own and manage NBA franchises predominantly sign black athletes to million dollar contracts, we don't have the same reason to be cautious that they're hiring them based, in part, on racial affinity. (Race-based stereotypes, perhaps, but not of the sort that lends the subconscious impression of inferiority.) We simply have reasons to be suspicious of subconscious motives when the discretion of white people conspicuously benefits white people that we don't have when more Jews or Asians appear in some greater percentage than we'd expect by extrapolating from pure numbers.

That much said, you're of course correct that the "clearly racist hiring practices" aren't at all clearly anything.

Hmm. I regret some of my wording. Just to clarify, I didn't mean by "every school child born in this country knows" that immigrants to America won't understand it also; it was purely rhetorical, and not for analytical purposes.

We simply have reasons to be suspicious of subconscious motives when the discretion of white people conspicuously benefits white people that we don't have when more Jews or Asians appear in some greater percentage than we'd expect by extrapolating from pure numbers.

Goober, you make the (minor) mistake of assuming Jews are a group clearly distinguished from "white people," but also the (more important) error of overlooking the main premise of Prof. Abboud's argument. He seems to believe that Jews control the hiring practices as well as constituting the beneficiaries thereof.

To respond to Eugene's contention, I agree in general that major institutions need not mirror regional or national demography. I think it is reasonable to inquire why a given institution differs significantly from that demography; sometimes it does, indeed, reflect conscious or institutional racism (or bias or bigotry). Unfortunately, this mindset also seems to be a staple of Arab attitudes toward Jews, very often without even a shred of justification. It's a pity to have such stereotypical thinking put forth as an example of the typical complaint of "racist hiring practices".

The Ivy League Jewish quotas of the early 20th century had something of the motive of this post, of trying not to let the student profile get too much out of line with rich people generally. A point that usually goes unmentioned is that places like Harvard didn't want to exclude Jews-- they just wanted to make sure didn't have more than 400% or so of their "fair" share of the student slots, about 16% instead of about 4% (don't quote me on the exact numbers). Once we start going down the road of group representation and unequal outcomes as discrimination, Jews and Asians are in trouble and we're not far from anti-semitism. If unequal outcomes are prima facie signs of discrimination, how do people explain the overrepresentation of Jews except as a conspiracy of Jewish leaders and their lackeys?

We simply have reasons to be suspicious of subconscious motives when the discretion of white people conspicuously benefits white people that we don't have when more Jews or Asians appear in some greater percentage than we'd expect by extrapolating from pure numbers.

Of course, in the particular case, the person making the complaint is ascribing it to the discretion of Jewish people benefiting Jewish people. So does he then have reason to be suspicious? Since the Faculty of the UCLA School of Law is already half Jewish, does that mean that "we simply have reason to be suspicious of subconscious motives" when they continue to hire Jewish faculty and the overrepresentation is perpetuated? After all, the current faculty making the hiring decisions is Jewish.

" . . . then either you need to impose quotas on Jews or on Asians, or you need to conclude that it's quite proper for institutions to not mirror the racial proportions of the population."

It does bother me if admission-selective public universities impose quotas on particular races. But it also bothers me if some parts of the community -- racial or geographic, for example -- are very substantially underrepresented in admission-selective public universities. All parts of the community pay taxes, and I could understand resentment if only some parts of the community benefit [granted, the society and state benefit from the education, etc., but in at least some public universities, the private benefit to the students is not fully captured by tuition]. This is one of the reasons why governments ought not run universities, or at least not ones that are not open to all residents. (Having the Government run K-12 schools doesn't bother me for this reason [although it does for others], as essentially everyone gets a place in those schools.)

I'd be less bothered if private universities imposed quotas -- at least it's not the State that's discriminating -- and I'd also be less bothered if private universities, by not imposing quotas, didn't reflect the demographics of some population they're not taxing to begin with.

Sorry, Shelby, but I wasn't writing in defense of Abboud, I was contradicting Prof. V. As is often the case, it's possible for them both to be wrong.

Indeed, if you'll look up at my initial post, you'll see: (1) I don't ever say that Jews are different from white people; (2) I never pretend that we Jews can't be just as insular and subconsciously discriminatory towards non-Jews as whites are to non-whites; (3) as I don't defend Abboud's criticism of the university; and (4) I conclude at the very end that Abboud's argument is pretty trivial.

Rather, if you can suspend your disbelief for a moment that I could possibly (!) not get that maybe Jews are like white people and Arabs are like brown people, you'll see that I was addressing Professor V's second part, the part where he extrapolates from the example set by Abboud to get to the looking-like-America bit.

Professor Volokh's characterization of Abboud's fit of spite is well-put, if a rather lazy shot to take at a very wide target. But the strange case of Edward Abboud doesn't justify Professor Volokh's conclusions about what "looks like America" ought to mean. And his even lazier assumption that our blithe acceptance of a lot of Asians getting into UC Irvine, or law faculties being disproportionately Jewish, entails that we can't be concerned about the exclusion of minorities from high-prestige jobs is similarly unjustified.

Wow, half the faculty at the UCLA School of Law is Jewish yet Jews make up two percent of the population? That seems odd to the blue-collar guy in fly-over country. I guess that Jews are more qualified to teach law than non-Jews;)

I wonder if that idiot who wrote about the Constitution being a "living" document is Jewish. Probably not.

If the answers to these questions are "no," then either you need to impose quotas on Jews or on Asians, or you need to conclude that it's quite proper for institutions to not mirror the racial proportions of the population.

I don't know, I would suppose there are other possible courses of action that might make sense - I concur with Goober's suggestion that we might inquire into discrpancies that have no immediate explaination without necessarily resorting to quotas.

I admit, however, I am surprised at Goober's characterization of Prof. Volokh's regurgitation of the facts of the ethnic makeup of UC Irvine et. al. as representing an assumption of "blithe acceptance". I am not quite sure how one reaches that conclusion from what he wrote.

Still and all, would it be wrong of us to question an ethnic makeup in a university sub-population that seems extraordinary? I hardly think so. With that said, such discrepancies surely needn't always be proof of nefarious motives, contrary to what Prof. Abboud clearly implies (despite Steve's quixotic assertion to the contrary).

Whatever the illusory "benefits" of affirmative action may be - and I am not convinced that there are any - I think it to be far, far more valuable to society that every person admitted can be sure that they got their position based on their own merit, and every person who graduates can be sure they earned it based on their own work. Not until racism in admissions is renounced once-and-for-all will this be the case. More bluntly, you can't beat discrimination with more discrimination; you only perpetuate the falsehood that the tool is valid.

Something missing from this discussion seems to be an acknowledgement of why asians or jews are disproportionately represented on faculties or university student bodies. Why is it discrimination if hiring faculties or admissions offices make their decisions, at least in large part, based on that American shibboleth - merit. We can argue all we want about historical and current inputs that affect the demographic landscape in this regard, but the fact remains that asians and jews, in large part, are disproportionately represented on law faculties and college student bodies because these ethnic groups value education and posses above-average intelligence.

Whether we should aim as a society to build student bodies and university faculties reflecting the general population in spite of the merits of individual candiates is another matter entirely. But to cry discrimination when, statistically, certain ethnic groups are disproportionately represented in colleges and faculties because, on paper, all other things excldued, they deserve to be, seems petulant. It may not be PC, but its true.

Arguments for affirmative action always talk of "under-represented minorities." That, of course, is to exclude Asians and Jews from inclusion, and implicitly labels them as "over-represented minorities," which is not a nice situation to be in ("We've got too many of your kind already. Go away.")

I wonder how Prof. Abboud determined Jew from non-Jew. Did he just look at names? (Not infalliable; one prominent Nazi was named Rosenberg.) Did he ask?

"But I think both quotes make the same mistake of inferring that racial or ethnic disproportion means 'racist hiring practices.'"

Disproportionate ethnic or racial composition is probably a necessary, but by no means a sufficient condition for proving discriminatory hiring practices. And, I can imagine that it wouldn't even be a necessary condition if the hiring practices are not systematic or pervasive.

Sorry, fell in love with my own sentence structure. I meant to say along the lines that, even if we were utterly unconcerned with overrepresentation of Jews and Asians at some institutions, it still wouldn't follow that we cannot then be concerned about about racial discrimination. Even those who are blithe about Irvine having a lot of Asians can consistently find other instances of disproportionate racial representation.

"If you think there are nonracist explanations for why Jews (or Asians or other groups) are overrepresented in certain fields, then it seems likely that there are similar explanations for why other groups are underrepresented in certain fields."

It does bother me if admission-selective public universities impose quotas on particular races. But it also bothers me if some parts of the community -- racial or geographic, for example -- are very substantially underrepresented in admission-selective public universities.

What about if conservatives or fundamentalist Christians are "very substantially underrepresented"? Does that bother you?

"Second, it's a peculiar kind of daftness that can't understand the difference between not wanting to go to a place because "everyone's so white there" and not going because "everyone's so black there." Issues of race and diversity and discrimination and all of it aren't susceptible to the unadulterated logic of symmetry."

In other words, you define and redefine racism, diversity, and discrimination so that your preferred outcomes are reached, rather than actually believing in any of what is said about racism, diversity, and discrimination.

"Sorry, fell in love with my own sentence structure. I meant to say along the lines that, even if we were utterly unconcerned with overrepresentation of Jews and Asians at some institutions, it still wouldn't follow that we cannot then be concerned about about racial discrimination. Even those who are blithe about Irvine having a lot of Asians can consistently find other instances of disproportionate racial representation.

Sorry for the confusion."

Are YOU concered with Jewish and Asian over-representation? In other words, if any group does better than they're supposed to, you're going to institute preferences and punishments to keep certain groups in their place, and to bring others up to where they should be. No?

Just want to make sure everyone is clear that what Abboud said does not reflect U.S. anti-discrimination law. First, assuming Cleveland State is like most other universities and does national searches for faculty, the appropriate comparison in Title VII law is NOT to compare the percentage of Arab-Americans CSU employs as faculty with the percentage of Arab Americans in Cleveland (or even in America generally). It would be the percentage of Arab Americans in the national labor pool with the qualifications to teach at CSU.

Second, even if we used the correct comparison numbers, and even if we found a big enough difference (2-3 standard deviations), that would STILL only create an inference of discrimination that the defendant could still rebut by offering some non-discriminatory reason for the difference.

So no law requires that law faculties reflect the demographics of the city they are in, or even that they "look like America."

Distinguish this: if I run Joe's Widgets, hire unskilled line workers almost exclusively from the town I'm in, the town I'm in is 50% white and 50% black, and the evidence is that of my 100 line workers, 5 are black and 95 are white, yeah, there's an inference that I have been discriminating (because this result seems statisticaly unlikely to have happened by chance/in the absence of discrimination). But even then, the employer can rebut with a non-discriminatory explanation for the stats. Is that horribly unfair?

I am confident E.V. knows all that, and would guess that he is really trying to get at a larger question of what anti-discrimination law should do with evidence that the *labor market* for certain jobs may be disproportionately filled with folks of certain ethnic groups. That's an interesting question.

Are YOU concered with Jewish and Asian over-representation? In other words, if any group does better than they're supposed to, you're going to institute preferences and punishments to keep certain groups in their place, and to bring others up to where they should be. No?

I know this isn't addressed to me, but since Goober and I seem to be on similar tacks, I will respond:

I think a disproportionate representation of any group in cases like we are discussing that lack an obvious explanation deserve scrutiny. I don't think "affirmative action" (at least in the sense you seem to mean it) is necessarily the solution. Statistically, however, we wouldn't expect to see disproportionate racial representation in any subgroup with non-preferential hiring practices if it is larger than a certain size, would we? If we do, is it wrong to inquire as to why that might be happening?

Of course, the explanation could be totally innocent, and I think that any investigation should proceed on the assumption that it is (unlike Prof. Abboud's statement which clearly assumes an unwholesome situation). I hardly think Goober even suggested "punishments" or "preferences" in cases such as UC Irvine et. al. I know I wouldn't.

But if problems exist in hiring or admissions, procedures should be put in place to correct them. If clear evidence of illegal preferences come to light, perhaps something stronger would be appropriate. It would certainly depend on the individual situation.

"Statistically, however, we wouldn't expect to see disproportionate racial representation in any subgroup with non-preferential hiring practices if it is larger than a certain size, would we? If we do, is it wrong to inquire as to why that might be happening?"

Glenn,

I believe Laurence Summers would be in the best position to field that last question.

What must be remembered is that the pool from which law faculty are being selected is not the overall population as a whole, or, indeed, that of all law school graduates, but, rather, of graduates from, say, the top 10% of top ten schools, or some similar grouping. And it is this group that has such a high Jewish composition.

The other factor that has to be included is that of intertia, in the guise of tenure, esp. bad here, as many full time positions are tied up by white (including Jewish) guys who were the bulk of that group of top 10 10%ers twenty to thirty years ago.

So, in reality, if you want a top tier faculty, you are going to have a lot of whites, and, in particular, a lot of Jews. If you want a demographically diverse faculty, you are going to have a second or lower tier faculty. Sorry, but that is reality. The pool from which to pick top tier law faculty is extremely biased, and thus, you have the choice of picking from that pool, or picking for demographics.

Constrast this with a jury pool, which should be representative of the community as a whole - because that is where it is supposed to have been drawn.

To throw a bit of gas on the "Jewish" fire, in may last post, I suggested that the group from which top tier law faculty are drawn is predominently white, with a large Jewish contingent.

But what I don't know, but would be interesting to know, is the percentage of top tier potential law faculty (my suggestion earlier of top 10% of top ten schools, for example) who are Jewish. My suspicion, not being Jewish, is that, though it is high, it is probably not as high, as, for example, the 50% or so Eugene cites for UCLA.

I throw this out, because I think that a lot of us non-Jews have some (small) experience where we think that just maybe Jews have given some small preference to other Jews. And, indeed, with enough alcohol in them, I have had Jewish friends admit just that. Call it networking. Or call it another facet of why Jews are so strongly Democratic in their voting, despite having almost identical demographics as their often much more Republican coworkers (obviously not talking academia here). A collective working together to help each other in the face of almost 2,000 years of oppression.

What must be remembered is that the pool from which law faculty are being selected is not the overall population as a whole, or, indeed, that of all law school graduates, but, rather, of graduates from, say, the top 10% of top ten schools, or some similar grouping. And it is this group that has such a high Jewish composition.

In that case, it would seem to me that as long as there isn't a significant statistical variance from the pool from which a faculty is drawn (assuming, of course, that the pool is self-selecting),there wouldn't be any problem. If the pool is not self selecting, evaluation of that criteria for racial and/or ethnic neutrality could be appropriate.

Of course, one may have to define what statistical variation would be accptable, which is another problem unto itself.

When you talk of top-tier faculty vs a more diverse pool of faculty, remember we were started on this by a complaint about Cleveland State. If that is now a law school with a top-tier faculty, I'd like to hear about it.

That sounds (and is) flip, but more seriously, how would your explanation of the mechanics account for third or fourth quintile schools with highly disproportionate Jewish faculty? I really don't have any answers, and this is not a "gotcha" question.

I suspect that it really doesn't change that much between first, second, third, etc. tier law schools. Well, maybe to get a job at a top tier, you may need to be in the top 1% or 2%. Those of you who are, could maybe chime in here. But I suspect that top 1/3 at a top 50 or top 100 law school is not going to get you a full time, tenure track, position in any ABA accredited law school.

I should add though that it IS worse today, a lot worse, if you are whilte, male, and heterosexual.

Which may get me to another statistical anomoly - gays and lesbians. My take is that they are significantly over represented in legal academia, as compared to their percentage of the population in general.

In other words though, I suspect that the pool that this law school is picking from still has an overrepresntation of Whites, esp. Jews. Sex though - expect a slight majority to be female.